Lawyers Discuss How State Should Select Judges

By JOSEPH GOLDSTEIN, Staff Reporter of the Sun
May 3, 2006

Three months after a federal judge struck down the way New York State selects its trial court judges, the city's legal community is far from a consensus about what system should be put in its place.

Several of the city's top attorneys, including the city's corporation counsel, Michael Cardozo, gathered last evening in Midtown at the city bar association building to discuss how New York should select its trial judges.

The ideas floated ranged from changing little of the existing party-controlled system, to opening the nominating process up to the general public through primary elections. Concerns expressed ranged from ensuring a diverse judiciary and protecting judges from running costly campaigns.

The topic of the quality of the judiciary received far less comment.

For many lawyers, the question of judicial selection will define the 2006 political season. The century-old debate of how to select state judges has never been settled, and has intensified in recent years following a slew of indictments against several judges in Brooklyn. A ruling in January by a federal judge that declared New York's system unconstitutional has given a new urgency to solving the issue.

In that ruling, U.S. District Judge John Gleeson found that party leaders controlled the nominating conventions that put candidates for the state's basic trial court, the state supreme court, on the November ballot, denying party outsiders a chance at the judiciary. He also found that the party-controlled system denied voters a meaningful say in the selection process.

Judge Gleeson initially ruled that the 25 vacancies on the supreme court this year should be filled by party primaries, followed by a general election. He has since stayed that order.

"In our view, this is the first real opportunity we've had in decades to revisit the issue of how judges get selected," a lawyer at the Brennan Center for Justice, Deborah Goldberg, said. "If this decision is not upheld on appeal it will probably the last opportunity for decades." She said a system of party primaries would not necessarily lead to expensive races, forcing judges to raise large sums of money.

Mr. Cardozo, the top lawyer for the city, called "practical" a system of independent qualification commissions that would endorse the three most qualified candidates to party nominating conventions. Mayor Bloomberg has endorsed such a proposal, which would require legislation from Albany. Other ideas, such as the creation of socalled "merit selection committees" that would actually pick judges, would need a constitutional amendment.

Although critics of the mayor's plan have said it would not lessen the control party leaders currently wield in selecting judges, Mr. Cardozo said that adjusting the rules governing the convention would allow more qualified candidates to stand a chance of being nominated.

"One issue is what I would call the Clarence Norman problem," Mr. Cardozo said, referring to the former Kings County Democratic leader, whom Judge Gleeson characterized as controlling judicial selection in Brooklyn. Under the current system, Mr. Cardozo said, "the fact of the matter is that the county leader has virtual dictatorial power over the quality of people coming out of the conventions."

But even in the wake of Judge Gleeson's decision, some lawyers have advocated that the present judicial nominating conventions be maintained with few changes. The current nominating conventions are responsible for much of the racial diversity currently on the bench, one supporter, Paul Wooten of the firm Paul Wooten & Associates, said.

"A convention by nature is what is called a consensus," he said. "By giving and taking, they end up getting African Americans and Latinos on the bench."